THE T-WORD, THE B-WORD, 7th GRADE BOYS, and THE DAWG’S GROSS-O-METER
DEAR DAWG: Snort, here. Rip Snort. Intrepid Reporter. Friend of the Truth. Dawg, we are outraged. Assistant Principal D.W. (“Mad Dog”) Butts, self-appointed czar of student jewelry, has notified the students that they may not wear certain bracelets. Lots of kids are wearing bracelets to support various causes. I guess LiveStrong got this whole thing started. But Butts…..Mr. Butts…. has issued a fatwa prohibiting the use of the pink bracelets put out by the Keep A Breast Foundation that say: I [heart] BOOBIES. You can find more information about this at http://www.keep-a-breast.org/programs/i-love-boobies/. Is this not viewpoint discrimination prohibited by the First Amendment? Is this not illegal and unconstitutional censorship? Did not the Supreme Court decide, many years ago, that students do not shed their constitutional rights when they enter the schoolhouse gate? We are outraged by Mr. Butts’s fatwa. SNORT.
DEAR SNORT: We are about to find out what the Third Circuit Court of Appeals thinks about this burning national issue. On February 20th the Court, sitting en banc, heard oral argument in the case of B.C. et. al. v. Easton Area School District. The case involves a school district in Pennsylvania that suspended two girls and banned them from a school dance for wearing the bracelets. The lawyer for the school district said that the school dress code barred any clothing that included a “double entendre.” The learned justices of the 3rd Circuit could not come to consensus on the meaning of that term. Some thought “I [heart] BOOBIES” was a good example of a double entendre, while others did not see it that way at all. Wikipedia tells us that a “double entendre” is a “figure of speech in which a spoken phrase is devised to be understood in either of two ways. Typically, one of the interpretations is rather obvious whereas the other is more subtle.”
Of course the problem here is that “subtle” never met a 7th grade boy. That’s basically what the lawyer for the school district was arguing before the court. At one point you can hear him exclaim in frustration, “These are 7th grade boys!!!” At another point, he accused the court of “throwing a match into a boiling cauldron of hormones.”
The 3rd Circuit verbally wrestled the issue to the ground during the oral argument, occasionally surrendering to guffaws of laughter. One of the judges was absolutely determined to find out what the lawyers would think if the bracelets contained the T word instead of the B word. He refused to say “the T word,” referring instead to “an objectionable synonym for breasts that begins with T.” You can hear all this for yourself at: http://www.ca3.uscourts.gov/oralargument/OralArg.htm/
DEAR DAWG: Local pain-in-the-butt Rip Snort has taken to complaining about my directive that kids are not to wear “I [heart] Boobies” bracelets to school. He’s entitled to his opinion. But what sticks in my craw is that he refers to my directive as a “fatwa.” Is he saying I’m fat? Snort is no one to point that out. It’s been a long time since he visited the salad bar. D.W. “MAD DOG” BUTTS.
DEAR MAD DOG BUTTS: Settle down, old friend. A “fatwa” is a legal opinion issued by an Islamic scholar. We suspect you are neither Islamic nor a scholar. We suspect Snort knows that and is just being provocative. Don’t take the bait, Butts. Let’s wait and see what the 3rd Circuit says about this issue. You may turn out to be right.
DEAR DAWG: I know there is a lot of concern over liability for student-on-student sexual harassment, but it seems that almost all of the cases fall short of the legal standard. The plaintiff has to show that the harassment was “severe, pervasive and objectively offensive,” which is a pretty high standard. Then they have to show that the school district knew what was going on and was “deliberately indifferent.” Pretty tough burden of proof. Do schools ever get socked with liability in these cases? WONDERING WHAT IT WOULD TAKE.
You are correct in your observations. This is a high burden of proof, but there are cases in which schools have been held liable. Take a look at Mathis v. Wayne County Board of Education, a 2012 decision from the 6th Circuit, 2012 WL 3608598. This jury awarded two middle school boys $100,000 each and the 6th Circuit affirmed. The case is an illustration of the mindset of middle school boys who are left alone in the locker room. The 8th graders harassed the 7th graders in ways we would rather not describe. There are some things that score too high on the Dawg’s Gross-O-Meter. Suffice it to say it involved blindfolds, sit-ups, and a surprise. And, of course, a kid named John Doe. Nate Silver has calculated that if your name is “John Doe” or “Jane Doe” you have a 63.7% better chance of success in your lawsuit. The jury apparently concluded that the school’s response to all this was too little and too late.